Disciplinary Panel Hearings

Mr Richard Kolawole - 03 October 2012

Mr Kolawole has not attended the hearing today. The first issue for the Panel is whether it is appropriate to proceed with the hearing in his absence.

The Panel has considered the submission of Ms Buckley for the RICS and the documentation submitted by Mr Kolawole, in particular his letter of 19th September 2012 in response to a letter from the RICS dated 12th September 2012. It has taken account of the advice of the legal assessor concerning the issue of proceeding in absence.

The Panel noted its ability, under Rule 30 of the Disciplinary, Registration and Appeal Panel Rules, to proceed in the absence of the appellant if it is satisfied that notification under Rule 23 has been properly given. The Panel is satisfied that Notice of the appeal hearing was sent to Mr Kolawole in accordance with Rule 23. It is further apparent from subsequent correspondence from Mr Kolawole that he is fully aware of the hearing scheduled to take place today.

The Panel accepts that, in these circumstances, it has discretion whether or not to proceed, and that such discretion must be exercised with utmost caution. The Panel recognises that it must, in exercising such discretion, balance on the one hand fairness to the appellant and on the other hand the public interest in proceeding with disciplinary cases as expeditiously as possible.

The Panel was referred to the criteria set out in the case of R. v. Jones [2002] UKHL 5, and considered those criteria carefully. Taking all those matters into account and, in particular, Mr Kolawole’s clear indication to RICS that he would not attend the hearing and was content for the Panel to proceed in his absence, the Panel has concluded that Mr Kolawole’s absence is voluntary and that an adjournment is unlikely to result in his attendance.

The Panel also noted that Mr Kolawole had submitted a witness statement, his grounds of appeal with appendices and various letters and other documentation, setting out in detail his case in relation to the appeal and therefore concluded that there was little or no risk of prejudice to Mr Kolawole by reason of his absence.

The Panel therefore decided that, having regard to the public interest, it would be appropriate for this hearing to continue in his absence.

Findings of Fact

Background

On 16 November 2011, the RICS Disciplinary Panel heard one allegation against Mr Kolawole namely that he did not at all times avoid any actions or situations inconsistent with his professional obligations in that he submitted “case studies” as part of his submission for final assessment of professional competence as his own work when in fact they had been copied from studies prepared by someone else, contrary to Rule 3 of the Rules of Conduct for Members 2007.

Mr Kolawole did not attend the Disciplinary Panel hearing nor had any representative attended on his behalf but Mr Kolawole had indicated that he was content for the matter to be dealt with in his absence.

Mr Kolawole, a student member of RICS based in Nigeria, had denied the charge.

The Disciplinary Panel had, however, found that Mr Kolawole had breached Rule 3 of the Rules of Conduct for Members 2007 and that he was liable to disciplinary action in accordance with Byelaw 5.2.2.

The Disciplinary Panel imposed a sanction of expulsion from membership.

Mr Kolawole now appeals the Disciplinary Panel’s decision on the ground that it made an error of judgment in its final conclusion, findings, determination and the sanction/penalty awarded. He also refers to the case of Salha & Another. v. GMC [2003] UKPC80.

The Appeal Panel has had the benefit of the witness statement, grounds of appeal and documentation submitted by Mr Kolawole, the representations made by Vicki Buckley on behalf of the RICS and the advice of the legal assessor.

The Appeal Panel has had regard to the Disciplinary, Registration and Appeal Panel Rules (“the Rules”), the RICS Sanctions Policy and its various supplements.

Determination

Decision

Having regard to the all the matters presented to it, the Appeal Panel considers that Mr Kolawole has not discharged the burden of satisfying it that the Disciplinary Panel’s decisions on the facts, liability to disciplinary action, sanction, publication and costs were wrong. His appeal is therefore dismissed.

The Appeal Panel’s reasons are that:

10.1 Mr Kolawole had submitted three case studies to RICS’ APC examiners for assessment of his professional competence. The APC examiners had regarded his writing up of the case studies for each of his projects as bearing striking similarities in terms of language and description of relevant issues to those which had been submitted (on different projects) by a professional colleague of Mr Kolawole.

10.2 Mr Kolawole had admitted in his defence that he had (with consent) borrowed his professional colleague’s case studies for assistance with formatting and guiding the writing up of his own case studies. Mr Kolawole had explained that, at the time he was preparing his case studies, he had recently suffered a family bereavement which had caused him great distress and ill-health.

10.3 The Disciplinary Panel had accepted that no dishonesty was alleged against Mr Kolawole.

10.4 However, the Disciplinary Panel had found that the numerous striking similarities between the written parts of the case studies submitted by Mr Kolawole and those submitted by his colleague went beyond formatting and phrasing.

10.5 Since case studies submitted to APC examiners are important for reliable assessment of candidates’ professional experience and competence, it is essential that written up case studies are candidates’ own work.

10.6 The Appeal Panel noted and accepted that the projects on which Mr Kolawole and his colleague had worked, and on which they had based their respective case studies, were different but could well have presented similar issues on which professional input was required.

10.7 The Appeal Panel has paid careful attention to the comparison between Mr Kolawole’s case studies and those of the other candidate at pages 94-96 of Tab 3 of the bundle of documents. This Panel does not doubt that Mr Kolawole had worked on each of the projects on which his case studies were based. The Panel concludes that the number and length of the passages in his case studies which were substantially similar to another candidate’s work were not coincidental, nor merely matters of formatting and phrasing but amounted to copying another person’s work. In all the circumstances the Panel concluded that Mr Kolawole must have deliberately plagiarised the work of another.

10.8 Given Mr Kolawole’s education, training and many years’ professional experience, he should have realised that, even though the projects were his own, when submitting work for assessment of his professional competence, plagiarism of another’s work for the purposes of writing up his case studies was unacceptable. Such plagiarism demonstrates a clear lack of integrity on the part of Mr Kolawole.

10.9 The Panel has therefore concluded that the Disciplinary Panel had not erred in its finding that Mr Kolawole’s actions in this regard had demonstrated a lack of integrity and a breach of Rule 3 of the Rules of Conduct for Members and was liable to disciplinary action.

10.10 As to sanction, Mr Kolawole sought to rely on the case of Salha & Another v. General Medical Council [2003] UKPC 80 where failure to prevent plagiarism was accepted to be serious professional misconduct but the penalty of three months’ suspension was set aside and a reprimand substituted. On the basis of advice from the legal assessor, this Panel concludes that this case is clearly distinguishable from Salha because in that case no lack of integrity or dishonesty on the part of two co-authors was alleged in the original disciplinary proceedings yet the sanction had been based on dishonesty. In Salha their Lordships had noted that since three months’ suspension had been deemed to be appropriate for dishonest copying, a lesser sentence, one of reprimand would be appropriate to negligent failure to prevent copying.

10.11 The Appeal Panel found that as a matter of fact the Disciplinary Panel had considered the mitigation put forward by Mr Kolawole. This was demonstrated in its determination. The Appeal Panel has reviewed the mitigation, including that concerning his health at the relevant time, his lack of a disciplinary record and his cooperation with RICS.

10.12 The Appeal Panel has reviewed the Sanctions Policy and Supplement 1 to the Sanctions Policy and considered each of the sanctions that would have been available to the Disciplinary Panel, starting with the least severe. It concluded that the matter was too serious for no sanction to be made and that a caution would be inappropriate for the same reason. Similarly a reprimand would be inappropriate because the public rightly expected competence and probity in a member of a professional body and the nature of this breach of conduct was too serious for a reprimand; Mr Kolawole might have gained admission as a member of RICS when he had not demonstrated that he was entitled to do so. The Appeal Panel decided that a fine would not adequately protect the public as someone would remain in the profession who has demonstrated a clear lack of integrity. Conditions upon his student membership would be inappropriate as it would be impracticable to formulate conditions that would address the issue of a lack of integrity.

10.13 Given the lack of integrity demonstrated by Mr Kolawole, an experienced individual, which was directed towards his professional body, the Appeal Panel did not find that the Disciplinary Panel had erred in imposing a sanction of expulsion from membership of RICS on Mr Kolawole. The Appeal Panel therefore found that the sanction imposed by the Disciplinary Panel was proportionate in all the circumstances of the case.

10.14 Mr Kolawole further submits that the order for publication and payment of costs were harsh and not in good faith. Mr Kolawole has provided no evidence to discharge the burden of satisfying this Appeal Panel that either order should not have been imposed; such orders being in compliance with Supplement 3 to the Sanctions Policy – Publication of Regulatory/Disciplinary Matters and Supplement 2 to the Sanctions Policy – Fines, Costs and Administration Fees.

Determination on Publication and Costs

PublicationThe Panel directs publication of this decision in accordance with Supplement 3 to the Sanctions Policy.